The Flawed Nexus between Contract Law and the Rules of Procedure: Why Rules 8 and 9 Must Be Changed

Abstract

The primary purpose of this Article is to examine the relationship between basic contract principles and procedural rules that are generally applicable to contract litigation. The evolution of claims and defenses in contract cases has produced contradictions in burdens of pleading and proof in garden-variety contract cases,particularly with respect to the important issue of the plaintiffs performance. The continued evolution of substantive contract law and terminology, and the failure of the rule-making process to take these developments into account has exacerbated the problem. As a result, the federal pleading rules adopted in 1938 and many state procedural rules and statutes modeled on the Federal Rules of Civil Procedure no longer provide satisfactory guidance to practitioners and courts alike on burdens of pleading and proof in basic breach of contract cases.

Specifically, this Article argues that Federal Rule 8(c) should be amended to eliminate the poorly understood defense of failure of consideration from the list of affirmative defenses. Similarly, Federal Rule 9(c) should be amended by replacing the term condition precedent with terminology that accurately reflects the proper scope and operation of Rule 9( c) under current contract law principles and procedural standards.